Custody by Non-Parents Part II: A Case in Point

by familyllb on April 12, 2012

Custody by Non-Parents Part II: A Case in Point

In my other Blog post this week, I discuss the requirements for an application by a non-parent for custody of a child. A case from a little more than a year ago called P.(C.A.G.) v. J.(C.), illustrates some of the considerations and issues that arise in these kinds of applications.
The matter was decided just as the Children’s Law Reform Act had been amended to impose additional requirements on non-parents applying for custody of a child. As indicated in my other post, these requirements include:

• obtaining police Record Checks;

• obtaining reports from every Children’s Aid Society where the applicant non-parents have resided, which sets out whether they have had prior involvement with that Society; and

• a check whether they have ever been involved in any family law proceeding regarding children.

By way of background, the mother of two children, now aged 8 and 2, had always had a tumultuous personal life. She and the children had always lived with her parents, with whom she had an agreement for joint custody of the younger child. In March 2009 she moved out, after which time the children were in the grandparents’ exclusive care. After that point, their mother had little contact with them; their father had no involvement with them whatsoever.

The Children’s Aid Society became involved after it determined that the younger child was a child in need of protection. The child was placed in the care of the grandparents, subject to the supervision of the Society. The child was later found to be in need of protection and by court order was placed in the grandparent’s care for 6 months. This arrangement was endorsed by the Society as it had worked closely with the grandparents and considered them to be appropriate caregivers. In fact, the Society was content to terminate the child protection proceeding if the grandparents were successful in obtaining a custody order.

Although the older child was not subject to any child protection proceedings, the grandparents wanted to change an existing court order to reflect the reality that they had been that child’s only caregivers and that the mother had virtually no involvement in her life.

The grandparents applied to the court for an order granting them: 1) sole custody of the older child; and 2) custody of the younger child.

However, the court staff refused to accept their application, because the grandparents failed to submit clearance documents from the police and from the local Children’s Aid Society, in accord with the Children’s Law Reform Act requirements.
The grandparents brought a motion for the court’s permission to have these requirements waived for them, arguing that – since they had already had custody of the child – the requirements should not apply to them.

The court crafted a solution: while it granted the grandparents’ request to have the requirements on the clearance documents waived, the court nonetheless required them to complete an affidavit under the Act which would provide the court with the evidence to make its decision.

The court explained that this was not a situation in which a non-parent was applying for custody from the outset, but rather a situation where a non-parent was asking for a variation of a custody arrangement that had already been decided by a court based on the child’s best interests. Even though they were non-parents, the previous court had seen fit to grant the grandparents custody rights, and had allowed the children to live in the grandparents’ home. The Children’s Aid Society support of the grandparents’ custody claims was also reassuring.

As such, the court could exercise its discretion and dispense with the clearance documents requirements, although it expressly observed that there may be situations in which the court might exercise its discretion in a different manner.

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About FamilyLLB

FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.